Competence and Compellability

Question 1

Distinction Between Competence and Compellability

Answer 1

● Competence - An inquiry into whether the witness has the capacity to provide evidence in court
● Compellability - a party to a court action can legally oblige the witness to appear in court to give evidence

Question 2

What is a subpoena

Answer 2

● Legal method to oblige a person to appear in court
○ Crown usually subpoenas own witnesses
○ But dont count on crown subpoenaing all witnesses in disclosure - if you want them, subpoena them.
● BC Offence Act s50, s51 - if witness doesnt attend court can issue arrest warrant and hold in contempt of court (civil)
○ Subpoena must have been served in accordance with act, and the person must be likely to give material evidence
○ They may be held in custody to appear to give evidence when required
○ If found in contempt can be liable for fine of 100$ or prison for 90 days or both, plus costs.

Question 3

Competency at CL

Answer 3

● At CL (Marquard), competency means capacity to:
○ Observe
○ Recollect
○ Communicate the evidence
○ Given under oath or solemn affirmation to tell truth

Question 4

What is the point of an oath/affirmation?

Answer 4

○ Shows importance of occasion - essential to society
○ Impress upon witness the seriousness of duty to tell truth
○ Bind the conscience of the witness
○ Gives witness fair notice of requirement for honest testimony (ex if perjury prosecution comes up)

Question 5

What if ur not religious - do you take an oath?

Answer 5

● BCEA says oath is still valid if non religious or differing religion
● CEA s14(1) says can make a solemn affirmation instead of oath

Question 6

Do young people have capacity?

Answer 6

● BCEA says 14+ years old have presumed capacity but parties can raise the issue. Challenging party can satisfy on BOP why shouldnt testify using the marquard test

● At CL (Marquard), competency means capacity to:
○ Observe
○ Recollect
○ Communicate the evidence
○ Given under oath or solemn affirmation to tell truth

If challenged, burden is to prove an issue of capacity to understand and respond to questions.
○ If the court is satisfied of an issue, court will conduct an inquiry to determine whether they are able to understand and respond to questions
● Court just requires witness to promise to tell the truth. Their evidence will be taken as if under oath.
● No witness under 14 will be asked questions as to their understanding of the truth for the purpose of determining whether their evidence shall be received
○ Unlike old days, where child needed to understand consequences if they didnt tell truth etc (bannerman, fletcher, walsh)

Voir dire on competence should be done independent of other voir dire issues, should be brief and accommodating. People familiar with witness are best able to provide evidence on their development. Expert evidence may be adduced.

Question 7

What if you are an adult and your capacity is challenged?

Answer 7

● CEA s16 - if 14 + and mental capacity is challenged, court shall conduct an inquiry to determine if person understands nature of an oath or solemn affirmation and whether the person is able to communicate the evidence (s16(1)). If they do, they will testify. If they do not understand but can still communicate evidence, they will testify on promise to tell the truth (16(3)).16(3) does not require understanding the nature of an obligation to tell truth. If they do not understand and cannot communicate they will not testify.
○ Burden is on party challenging competency.
○ Expert evidence may be used but the ultimate decision is up to judge / trier of law
○ Meaning of communicate the evidence: more than a verbal ability, need capacity to perceive, remember, communicate. (marquard)
○ Policy: vulnerable, inability to prosecute, enforceability and rule of law, only first step - weight determined later.
● Voir dire on competence should be done independent of other voir dire issues, should be brief and accommodating. People familiar with witness are best able to provide evidence on their development. Expert evidence may be adduced.

Question 8

Age of child witness?

Answer 8

Under 14. (ie up to and incl 13)

Question 9

Describe whether spouses are competent witnesses

Answer 9

● Section 4 of CEA ** examinable
● Old section said that wife is not competent or compellable except for certain offenses.
○ Deemed inherently unreliable, flowed from idea of wife and husband as one legal person
○ Emphasis on preservation of marriage.
○ Only applied to actual married couples
○ Societal repugnance at forcing testimony against spouse
● NOW: spouses are competent…
○ Civil cases: compellable despite any marital status or lack thereof
○ Crim cases: competent for the defence, competent and compellable at instance of the Crown only for certain offences
■ Sexual offences, abduction offences, polygamy, false marriage offences (s4(2)) → competent + compellable
■ Where victim is under age 14, crimes involving harm to a person under the age of 14 also have spousal competency and compellability (s4(4))
● Where marriage is a sham they might be ok to testify (hawkins)
● Challenges on s15 to include CL marriages have failed.
● Privileged communications between spouses (but they can still be compelled to testify observances) (s4(3))
● Failure of a wife/husband to testify shall not be made the subject of comment by judge or counsel for prosecution (s4(6))
● Additionally, CL provides more exceptions in addition to those under s4:
○ Accused is charged with offence involving spouses health, person, or liberty
○ Absent a criminal charge, evidence reveals that accused threatened the spouse’s health, person, or liberty
○ Violence, cruelty, or threats against a spouse’s younger child
○ Bar against compellability doesnt apply to CL spouses or marriages where spouses have irreconcilably separated.
● Policy: spouse might have info no one else does

Question 10

s4 of CEA

Answer 10

Accused and spouse

4 (1) Every person charged with an offence, and, except as otherwise provided in this section, the wife or husband, as the case may be, of the person so charged, is a competent witness for the defence, whether the person so charged is charged solely or jointly with any other person.

Spouse of accused

(2) No person is incompetent, or uncompellable, to testify for the prosecution by reason only that they are married to the accused.

Communications during marriage

(3) No husband is compellable to disclose any communication made to him by his wife during their marriage, and no wife is compellable to disclose any communication made to her by her husband during their marriage.
(4) and (5) [Repealed]

Failure to testify

(6) The failure of the person charged, or of the wife or husband of that person, to testify shall not be made the subject of comment by the judge or by counsel for the prosecution.

Question 11

s4(1) of CEA

Answer 11

Accused and spouse

4 (1) Every person charged with an offence, and, except as otherwise provided in this section, the wife or husband, as the case may be, of the person so charged, is a competent witness for the defence, whether the person so charged is charged solely or jointly with any other person.

Question 12

s4(2) of CEA

Answer 12

Spouse of accused

(2) No person is incompetent, or uncompellable, to testify for the prosecution by reason only that they are married to the accused.

Question 13

s4(3) of CEA

Answer 13

Communications during marriage

(3) No husband is compellable to disclose any communication made to him by his wife during their marriage, and no wife is compellable to disclose any communication made to her by her husband during their marriage.

Question 14

s 4 (6) of CEA

Answer 14

Failure to testify

(6) The failure of the person charged, or of the wife or husband of that person, to testify shall not be made the subject of comment by the judge or by counsel for the prosecution.

NOTE
This does not include:
■ Neutral commentary
■ Defense lawyers (they can comment positively on accused not testifying)
■ Co Accuseds (they can comment on each other’s failure to testify but without inappropriate invitations such as to infer guilt because they didnt testify)
■ Judge alone cases
■ Note: 4(6) does NOT prohibit judge from affirming an accuseds right to silence

Question 15

Accused is not a compellable witness in his own trial at the instance of the Crown … describe.

Answer 15

○ Now covered by charter 11(c)
○ Silence of accused may not be used as inculpatory evidence.
■ Can be used to inference guilt only where a case has been put forth and the accused is “enveloped in a cogent network of inculpatory facts”, can also factor into BRD standard, and can be used to conclude that evidence of crown is uncontradicted so must be evaluated without regard to any other explanation of facts.
○ Adverse inference from failure to testify → not allowed to infer guilt from accused not testifying (R v Noble)
■ Limited exception: accused puts forward alibi defence through other witnesses but doesnt testify about it themself. Trier of fact may use fact of accused not testifying to assess the credibility of the alibi defence.

Also note s4(6) of CEA.

Question 16

List rights against self incrimination during trial (8)

Answer 16

● Accused is not a compellable witness in his own trial at the instance of the Crown - s11(c) charter
● Subsequent Use Immunity
● Derivative Use Immunity - s7 of Charter
● Immunity from compellability (in not own trial)
● Cross Examination on use of s13 Immunity → not usually permissible
● Adverse inference from failure to testify → not allowed to infer guilt from accused not testifying (R v Noble)
●CEA 4(6) prohibits crown or judge from commenting on failure of accused or their husband/wife testifying (not even allowed good comments).
● Ability to sever trial from co-accused if unfair trial/ interest of justice

Question 17

Describe Subsequent Use Immunity

Answer 17

○ CL → witness could claim privilege against incriminating answers on witness stand
○ CEA → witness was compellable and had to answer questions, but testimony couldnt be used against him at a subsequent trial
■ Subsumed under charter s13 right to not have incriminating evidence so given used against them in other proceedings except perjury
○ Old distinction could not be used to determine factual issue of guilt but instead was relevant to credibility… this was criticized.
○ SCC changed law to accused cant be cross examined with prior testimony that could have the possible effect of incrimination
○ R v Henry (2005): s13 rules:
■ Accused does not testify at present trial → prior testimony cant be used ever
■ Accused testifies at trial and then at another proceeding where he was compellable (he was not the accused at previous trial) → cant use prior testimony against him
■ Accused testifies at trial and then at another proceeding where he was not compellable (he was the accused and chose to testify) → Crown can C.E. on prior testimony
○ Exemption: perjury and similar cases because false testimony itself is the actus reus.
○ R v Nedelcu (2012): s13 only protects against incriminating evidence
■ Two requirements to trigger s13:
● Testimony at prior proceeding was legally compelled
● Substance of the testimony itself is incriminating
■ This requirement excludes prior compelled testimony, the substance of which is innocuous or non incriminating
■ If used to challenge credibility or may lead to trier of fact disbelieving the testimony in a subsequent trial, will not trigger s13 protection
■ Crown may take additional steps to convert previously non incriminating evidence at a prior proceeding into evidence to incriminate the accused → wont trigger s13
■ There is a possibility that non incriminating evidence from a prior proceeding might become incriminating at a subsequent trial, thereby triggering s13
■ DISSENT:
● Affirms henry tests. Says the distinction btwn incriminating and innocuous or non incriminating is unworkable.
● Cross Examination on use of s13 Immunity → not usually permissible

Question 18

Current requirements to trigger subsequent use immunity

Answer 18

○ R v Nedelcu (2012): s13 only protects against incriminating evidence
■ Two requirements to trigger s13:
● Testimony at prior proceeding was legally compelled
● Substance of the testimony itself is incriminating
■ This requirement excludes prior compelled testimony, the substance of which is innocuous or non incriminating
■ If used to challenge credibility or may lead to trier of fact disbelieving the testimony in a subsequent trial, will not trigger s13 protection
■ Crown may take additional steps to convert previously non incriminating evidence at a prior proceeding into evidence to incriminate the accused → wont trigger s13
■ There is a possibility that non incriminating evidence from a prior proceeding might become incriminating at a subsequent trial, thereby triggering s13
■ DISSENT:
● Affirms henry tests. Says the distinction btwn incriminating and innocuous or non incriminating is unworkable.
● Cross Examination on use of s13 Immunity → not usually permissible

Question 19

Describe Derivative Use Immunity

Answer 19

○ Evidence that could not have been found/appreciated but for the prior testimony of the accused can be excluded from being used against the accused (R v SJR) → either under s13 or s7
■ Could means logically probable not just possible - could crown practically speaking have got the evidence?
■ Burden on accused to show if derivative
■ This extends to prior proceedings such as public proceedings or civil proceedings
● Public inquiries speak to larger societal issues
● What if the person self incriminates? Protected.
● Concern: what if that isnt enough? Are there circumstances where someone shouldn’t have to testify at all?

Question 20

describe Immunity From Compellability

Answer 20

○ S7 protects where (1) predominant purpose of compulsion is to obtain self incrim evidence or where compulsion would cause undue prejudice
■ A finding of prejudice might lead to other remedies besides exemption… maybe publication ban
○ BC Securities Commission v Branch (1995)
■ (1) dominant purpose is to garner evidence for proceeding + remedy → compelled (but still has subsequent use immunity)
■ (2) dominant purpose is to procure evidence for crim proceedings → excused
■ (3) if no special prejudice demonstrated → compelled
● Onus is on witness on BOP to show that subsequent use immunity won’t protect them
■ (4) Value is little to inquiry but high to crim proceeding → draw an inference that dominant purpose is to incriminate witness

Question 21

When can severance be obtained from co accuseds?

Answer 21

● Legal system wants joint trials - economy, not interfering with Crown discretion
● Severance can be obtained if you convince judge it is in the interests of justice
○ Judges are reluctant to grant this
○ When tried together, crown cant compel any of them to testify - if severed, they can be compelled at each others’
○ If compelled to testify at another’s trial, MAYBE their testimony will be used against co-accused during their own trial (Henry, Nedelcu).
● If crown’s case is weak, advisable for defence lawyers to agree to keep client off stand pointing fingers. Let onus rest on crown.
● If plethora of crim activity involved, can have a prejudicial effect on an individual accused. Severance may be advisable.